October 15, 2020

ASC Industry Awareness

ASCs Are Proving Extremely Safe During Pandemic

It was only six to seven months ago that outpatient surgery centers of all stripes were in the throes of determining how to embed best practices for infection prevention so that upon reopening patients could confidently return. Even with all the protocols in place, patients were not so sure at first and some are still hesitant. Patients need to fear no more! ASCs have performed admirably, even during the early phase of the pandemic. Only 16 of the nearly 85,000 patients studied at over 700 ASCs tested positive for COVID-19 within 2 weeks of their procedures, for an incredibly low .02% infection rate. The March/April survey of outpatient surgery centers in eight states included Louisiana, New Jersey, and New York; states that were all experiencing high rates of infection in the initial phase of the pandemic.


Out-of-Network Watch

Are We Getting Closer to Federal Action on Surprise Medical Bills?

Senators Lamar Alexander and Bill Cassidy have been working on federal legislation that utilizes baseball-style arbitration, when needed, to settle payment determination differences between providers and insurers in order for patients to avoid surprise medical bills. Senator Alexander believes Congress is inching closer to a deal to get patients out of the middle of billing disputes. Over the last two years as the federal government has been studying and debating, nearly half of US states have developed their own solutions. Many Michigan physicians are disenchanted with the rate-setting component their state is proposing. The Michigan proposal is receiving national attention for the unique way it combines aspects of rate setting and arbitration.



Affordable Care Act Constitutionality Hearing Process

   From the office of Jon Sistare, JD, Attorney at Law

In less than a month, on November 3, 2020 (or shortly thereafter), the future of many policy issues in the US will be resolved by the election. One of those, which gets a great deal of attention and which affects millions of Americans’ access to health care, is the decision on Obamacare to be heard by the U.S. Supreme Court.

On Nov. 10, the U.S. Supreme Court will hear arguments on whether the Affordable Care Act (ACA) is constitutional, in whole or in part. The court is expected to rule on the matter before its term ends in June 2021.

Only those justices sitting on the court when the case is heard will vote, and it is not yet known if a new Supreme Court justice will be confirmed when the case is argued. A vacancy on the nine-justice court was created by the death of Justice Ruth Bader Ginsburg on September 18.

As you may know, in December 2018, a Texas district court struck down the ACA but stayed its ruling pending appeal, concluding that the individual mandate is so connected to the law that Congress would not have passed the ACA without it.

On appeal, in Texas v. United States, the 5th U.S. Circuit Court of Appeals deemed that the individual mandate was unconstitutional, but the panel instructed the district court to rehear the matter and “to employ a finer-toothed comb on remand and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the mandate.”

However, on March 2, 2019, before the district court could carry out the appellate court’s directive, the Supreme Court announced it would hear the case in its term beginning in the fall of 2020, blocking the lower courts from taking further action.

The Supreme Court has the following options when it decides the caseThe Washington Post and other sources have reported:

  • To dismiss the case on technical grounds, leaving the statute in place. The court could decide, for instance, that Texas and the individual plaintiffs lacked standing to bring the lawsuit.
  • To affirmatively uphold the ACA.
  • To uphold the statute while finding the individual mandate to be void without its penalty, essentially maintaining the status quo.
  • To uphold the statute but void both the individual mandate and other provisions closely linked to the mandate.
  • To strike down the law in full, although that option has been viewed as unlikely by legal analysts. Should it happen, however, the effect of the ruling would likely be delayed, giving Congress the opportunity to correct the statute’s constitutional defects or to pass a replacement health care law.

According to an analysis by the nonprofit Kaiser Family Foundation, “If the Supreme Court adopts the position that the federal government took during the trial court proceedings and invalidates the individual mandate as well as the protections for people with pre-existing conditions, then federal funding for premium subsidies and the Medicaid expansion would stand, and it would be up to states whether to reinstate the insurance protections.” If that were to happen, Congress also could reinstate protections for people with pre-existing conditions.

Joe Biden, the Democratic presidential nominee, has voiced his support for the ACA, pointing out how it safeguards people who might not otherwise qualify for coverage. President Trump has also pledged to maintain these protections even as his administration supports the lawsuit that seeks to overturn the act.

“If the case is heard by the current eight justices and results in a 4-4 vote, the justices could reschedule oral argument or delay consideration until [Texas vs. United States] can be reheard by a full Court,” wrote Katie Keith, a former research professor at Georgetown University’s Center on Health Insurance Reforms. “This might mean Texas would be reheard later in the spring depending on the timing of confirmation.”

Alternatively, “the Court could issue a 4-4 ruling, which would maintain the status quo and leave the appellate decision intact. In this instance, the Fifth Circuit’s ruling would stand and the case would be remanded back to the district court,” she noted.

If that is the outcome, “the ACA would remain in effect while the district court undertook a provision-by-provision severability analysis,” Keith noted. “The litigation would continue for years as we await a new district court decision, another appeal to the 5th Circuit, and most likely a return to the Supreme Court.”


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